Setting Aside family law orders

set aside family law final orders

Setting Aside/Varying Final Parenting and Property Orders made pursuant to the Family Law Act 1975 (Cth)

It goes without saying that the Court's time and resources are finite. When the Court makes final orders, it does so on the basis that those orders will finalise the matter once and for all. For this reason, the Court is generally reluctant to entertain applications to 'set aside' final orders. In general terms, there are some limited circumstances in which an order may be set aside or varied:

  • Where there is a miscarriage of justice (ie. fraud, duress, the giving of false evidence, or the suppression of evidence).

  • Due to specific difficulties or hardships (including the impracticability of carrying out the order) or changed circumstances of an exceptional nature relating to the care of a child of the marriage or relationship that results in hardship for one of the parties.

  • Due to circumstances that have arisen since the order was made, it is impracticable for the court order to be carried out.
  • Setting Aside or Varying family law Parenting Orders

    Only in specific circumstances

    A final parenting order may only be changed in specific circumstances. The rationale for this is based on the fact that it is considered not to be in the best interests of the children nor the public interest for parties to be continuously re-litigating about parenting matters. Chief Justice Evatt in Rice v Asplund (1979) FLC 90-725 provided that the court:

    "should not lightly entertain an application...To do so would be to invite endless litigation for change is an ever present factor in human affairs."

    Further it allows for the issue of judge hopping to be avoided whereby parties seek out different judges in the hope that their opinion may lie more favourably in line with their proposals.

    Consent of the parties

    Even in the circumstance where the parties consent to a change in the orders the court must still uphold the best interests of the child as the paramount consideration. Parties can circumvent entering the court system to vary final orders by entering into a subsequent parenting plan.

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    No consent of the parties

    In the circumstance where the parties to the orders do not consent to set aside or vary the orders an application must be made to the court to determine the matter. In order to set aside final parenting orders parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made before the court sets aside or varies those final orders the applicant must establish a significant change in circumstances.

    Once the court is satisfied that such factor exists they will then continue to determine the matter in the ordinary way pursuant to the Family Law Act 1975 (Cth) and the relevant case law. Simple satisfaction of threshold does not necessarily equate to the orders being set aside or varied which the court maintaining their discretion and making decisions based on the paramount focus of the best interests of the children. Accordingly the court may dismiss any application to set aside or vary such order on the basis that it is not in the best interests of the children.

    The Rice v Asplund test

    The Rice v Asplund test can be applied as a preliminary matter or at the end of a full hearing in regard to the parenting matter. The preference is to apply the rule as a preliminary matter. However, is it a matter for the discretion of the judge as to when to apply the rule. The category of circumstances which are sufficient to justify a significant change in circumstance are not closed and are considered collectively in the context of the matter itself rather than as each separate individual factors. Each case should be considered on an individual basis. For example, factors that may be taken into account:

  • Time elapsed since date of final orders;
  • A party seeking to relocate;
  • New relationships of the parties;
  • Change to the children's wishes;
  • Change to the health of a child/party.
  • Setting Aside/varying family law property orders

    Only in limited circumstances

    Property orders, whether entered into by way of consent without litigation, by consent within a litigation proceeding or handed down by a Judge may be set aside/varied pursuant to section 79A (regarding orders made concerning parties to a marriage) and section 90SN (regarding orders made concerning parties to a de facto relationship) of the act. However, these circumstances are limited in light of the court's duty to make orders that finalise litigation.

    Consent to set aside/vary orders

    Should both parties consent to setting aside the orders the parties or a person affected by the order may make an application to the court to vary or have the order set aside and the court may make a new order. The court holds discretion as to whether they grant such application. Parties may consent by way of conduct (McCabe and McCabe (1995) FLC 92-634).

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    Who are "persons affected by the orders"?

    The category of "persons affected by the orders" is not closed and will be considered on the basis of the entirety of the evidence presented to the court as to how that person is affected. A person may be a natural person or a company. However, the act provides for special provisions in regards to creditors providing that a creditor is classed as person affected in the circumstance whereby they may not be able to recover their debt because the order has been made.

    Further in relation to bankruptcy the bankruptcy trustee is taken to be a person whose interests are affected by the orders in question if when the order was made a party was bankrupt or subsequently became bankrupt. Thereby if the trustee in bankruptcy has commenced or entered proceedings in the Court on behalf of the creditors, the creditors are not able to join as a party to the proceedings. Rather the trustee in bankruptcy is the appropriate person to take action on behalf of the relevant creditors to set aside or vary the orders.

    Set aside/varying orders in circumstances where the parties do not consent

    In the circumstance where the parties do not consent a person affected must make an application to the order seeking such order be granted. With the view towards finality in litigation the act provides limited grounds by which such application would be successful. Notably even upon satisfaction of one or more of the below grounds, the court maintains discretion as to whether or not to grant the application and will not lightly do so. Accordingly, the following grounds are considered basis for such application:

    There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
    Circumstances, among others, that may satisfy this ground are as follows:
  • Where either party has not provided full disclosure and/or provided misleading information leading to the court to make a false inference. Simply not providing full disclosure may not be sufficient, there must exist an added element of resulting in a miscarriage of justice;
  • non-appearance at the hearing; or
  • lack of capacity; or
  • where there was a substantial increase in the value of property prior to the order being made that was not disclosed or accounted for.
  • In the circumstances that have arisen since the order was made it is impracticable for the order to be carried or impracticable for a part of the order to be carried out.
    In order to satisfy this ground there must be something more than mere difficulties in carrying out the orders.
    A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
    The party who has defaulted by way of wrongdoing will usually not be successful in attempting to alter the orders on this ground on the principle that a party should not benefit from their own wrong.
    In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage/de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection 1AA), the applicant, will suffer hardship if the court does not vary the order to set the order aside and make another order in substitution for the order.
    There is no closed category of what will satisfactory amount to hardship. However it must be something out of the ordinary and not reasonably expected to have occurred.
    A proceeds of crime order has been made covering property of the parties to the marriage/de facto relationship of either of them, or a proceeds of crime order has been made against a party to the marriage/de facto relationship.

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    How we can help you

    It can be seen that setting aside or varying property/parenting orders is an onerous task emphasising the importance of obtaining proper advice and the most favourable order in the first instance. Please contact us to arrange a conference with one of our experienced family law solicitors if you are currently in the process of a family law matter or should you need some assistance in the complex legal requirements that apply when setting aside or varying your current final orders or should you currently experiencing family law issues.